Was Kentucky's 30-mile assistant county attorney residency rule measured by road or straight line?

Plain-English summary

A Calloway County attorney asked how to measure the statute allowing assistant county attorneys to live within 30 miles of the county line. The Attorney General said to use a straight line on a map rather than road mileage. KRS 69.300 did not say to follow streets or driving routes. The AG contrasted it with another Kentucky statute that expressly required measuring along a street and cited decisions favoring straight-line measurement where the law did not specify otherwise.

The opinion addressed the 30-mile alternative to residence in the county; it also noted the statutory alternative for residence in a contiguous county. It did not resolve the eligibility of a named applicant or supply a map measurement for any particular address.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the 30-mile residency limit mean 30 driving miles?
A: No. The AG read KRS 69.300 as requiring the shortest straight-line distance on a map from the county line.

Q: What if the driving route was longer than 30 miles?
A: Under the opinion's interpretation, driving distance did not determine the statutory 30-mile test; the straight-line measurement did.

Q: Why did the AG reject road mileage?
A: KRS 69.300 did not require street measurement. The AG said the Legislature knew how to specify that method when intended, and road routes could change or produce inconsistent results.

Q: Was a neighboring county also an allowed residence?
A: The statute quoted by the AG separately allowed an assistant county attorney to live in a contiguous county.

Background and statutory framework

KRS 69.300 allowed assistant county attorneys to reside in the electing county, “within thirty (30) miles of the county line, or in a contiguous county.” The AG compared a Kentucky licensing statute that expressly required measuring along a street. It concluded that the 30 miles in KRS 69.300 should be “measured as a straight line on a map, rather than in terms of driving distance on existing roads.”

Citations and references

Statute: KRS 69.300.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_dd2b5be2-d245-444d-bfde-9ceab62feae0/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_dd2b5be2-d245-444d-bfde-9ceab62feae0

Original opinion text

OAG 06-004
December 11, 2006
Subject:

Meaning of residency requirement for assistant
county attorneys in KRS 69.300

Requested by:

David L. Harrington, Esq.
Calloway County Attorney

Written by:

James M. Herrick
Assistant Attorney General

Syllabus:

KRS 69.300’s requirement that assistant county attorneys reside within 30 miles of the county line should be interpreted as 30 miles in a straight line.

Statute construed:
OAG’s cited:

KRS 69.300

OAG 92-9, OAG 82-418

Opinion of the Attorney General
Prior to 1994, KRS 69.300 required assistant county attorneys to
reside in the county in which the county attorney was elected. OAG
92-9; OAG 82-418. The amended version of that section, enacted in
1994, provides that assistant county attorneys may also reside “within
thirty (30) miles of the county line, or in a contiguous county.”
The question presented is whether this 30-mile distance is to be
calculated in a straight line “as the crow flies” or according to the
mileage that would have to be traveled along existing roads to reach
the county line. As there are no published cases or prior opinions interpreting the provision, this is an issue of first impression.

OAG 06-004
Page 2

Although one Kentucky case, Hunt Club, Inc. v. Moberly, 407
S.W.2d 148 (Ky. 1966), has interpreted a statute as requiring a distance measurement to be taken by following the streets, that case is instructive by what distinguishes it from the present situation. The statute construed in Hunt Club, KRS 243.220, prohibited the issuance of alcoholic beverage licenses for premises within 200 feet of a school or church building, and expressly stated: “The measurement shall be taken on the street on which the licensed premises are located.” Accordingly, the Court noted: “By reading the latter part of the statute relative to making the ‘measurement,’ it is apparent the Legislature means that the measurement should be taken ‘on the street’ where people travel, not as the crow flies.” Id. at 149. By contrast, KRS 69.300 contains no express language or implication to the effect that the 30-mile perimeter around the county should be measured “on the street” or in any manner other than a straight line. “In the absence of any specific statutory provision governing the manner of measurement of distances, distance is to be measured along the shortest straight line, on a horizontal plane, and not along the course of a highway, or along the usual traveled way.” 79 AM.JUR.2d, Weights & Measures, § 46, p. 73.1 It is evident from Hunt Club that the General Assembly was capable of specifying street measurement if it wished. The Appellate Court of Connecticut recently addressed this issue in construing a planning and zoning statute that prohibited more than one planned residential development from being located within one mile of another such development. Conducting a thorough analysis of cases from various state and federal courts on the subject of measuring statutory distances, the court found the straight-line method applicable, reasoning in part as follows:

1

The encyclopedia mentions an exception noted in Stark County v. Henry County, 158 N.E. 116, 118 (Ill. 1927), where “the distance is between cities, where mileage is to be computed, or where the context indicates that the distance is to be traveled.” None of these is the case with KRS 69.300, which simply sets forth a residency requirement among the qualifications for the office.

OAG 06-004
Page 3

In our view, the straight line method of measuring distance
renders [the statute] effective and workable, and avoids
the unreasonable and bizarre results that occur from the
use of the roadway method. Using the roadway method
could involve inconsistencies in its application that could
result in impermissibly arbitrary enforcement. For example, is distance measured “building to building” or property line to property line? Is it measured using the center of the roadway, or the right or left boundary of the roadway? Additionally, a bizarre result could occur if a distance measured using the center of the roadway is less than one mile, but measured on the outside of the roadway, due to a curve, is greater than one mile. As the United States District Court for the Eastern District of Pennsylvania has noted, adopting a method of measurement other than the straight line method would create uncertainty, generate needless debate and thwart a readily ascertainable distance. Trumbull Falls, LLC v. Planning & Zoning Comm’n of Town of Trumbull, 902 A.2d 706, 712 (Conn. App. 2006) (citing U.S. v. Blount, 940 F.Supp. 720, 723 (E.D. Pa. 1996), aff’d sub nom. U.S. v. Riddick, 100 F.3d 949 (3d Cir. 1996), cert. denied, 519 U.S. 1083 (1997)), certification denied, 908 A.2d 545 (Conn. 2006). This result is in accord with the modern rule among the federal courts as to the interpretation of the so-called “100-mile bulge” where a district court’s jurisdiction to issue a summons or subpoena can extend outside the boundaries of its district under Fed. R. Civ. P. 4(k)(1) (B) and 45(b)(2). The more recent cases hold that this distance is to be measured along a straight line on a map, rather than along an ordinary route of public travel. See, e.g., Cook v. Atchison, Topeka & Santa Fe Ry. Co., 816 F.Supp. 667 (D. Kan. 1993); Langsam-Borenstein Partnership by Langsam v. NOC Enterprises, Inc., 137 F.R.D. 217 (E.D. Pa. 1990); Hill v. Equitable Bank, Nat’l Ass’n, 115 F.R.D. 184 (D. Del. 1987); SCM Corp. v. Xerox Corp., 76 F.R.D. 214 (D. Conn. 1977).

OAG 06-004
Page 4

Although few published cases specifically discuss the calculation
of distances contained in statutory residency requirements, the
Supreme Judicial Court of Massachusetts has addressed the subject. In
Burke v. Chief of Police of Newton, 373 N.E.2d 949 (Mass. 1978), a
statute required a newly appointed police officer or firefighter for a city or town to “establish his residence within such city or town or at any other place in the commonwealth that is within ten miles of the perimeter of such city or town.” (See companion case, Doris v. Police Comm’r of Boston, 373 N.E.2d 944, 947 n.2 (Mass. 1978).) Faced with this substantially identical language to that appearing in KRS 69.300, the court reasoned as follows: A “mile” is “a measure of distance.” [Dictionary citation omitted.] It is not a description of how to measure that distance. … Had the Legislature desired the method of measurement to be by following existing roads we assume it would have used the term “road miles.” The use of the term “mile” without the qualifying adjective to mean “road miles” is to insert into the statute a word not found therein. Nor is the construction urged on us by the defendant a reasonable one. To hold that conformity to the statutes depends on the road distance between an officer’s home and the nearest boundary of the city or town of employment would be to subject such an officer to unpredictable future events over which he has no control. An officer could find himself suddenly in noncompliance by the closing of a road, the conversion of a road to one-way traffic, or perhaps even the installation of a rotary. Absent clear legislative language to work such a result, we interpret the statute in such a way as to avoid the substantial potential for confusion and uncertainty that would otherwise exist. We think that the term “ten miles” means miles as may be computed by measuring the straight line distance between two points on a map.

OAG 06-004
Page 5

Burke, supra, 373 N.E.2d at 951. If this construction is reasonable for police officers and firefighters, who often have to respond promptly in emergency situations, it is a fortiori reasonable for assistant county attorneys, who are not emergency response personnel. Conclusion It is therefore our opinion that the 30 miles from the county line referred to in KRS 69.300 should be measured as a straight line on a map, rather than in terms of driving distance on existing roads.

Gregory D. Stumbo
Attorney General

James M. Herrick
Assistant Attorney General